Volume 39 — Florida Reports

STATEMENT. On the 30th of September* 1889, the city of Jacksonville passed an ordinance, the first, second, fifth, sixth and seventh sections of which are as follows: Section 1.

<p>,1. By the ordinance of the city of Jacksonville passed September .30, 1889, owners of lots, within the city limits, fronting on or abutting upon any street or lane within the limits fixed for speeial taxation for water works and fire protection, with certain specified exceptions, were required to construct, repair or ■otherwise have in thorough repair, within sixty days after the approval and publication of tlie ordinance, and thereafter keep and have in thorough repair, a good and sufficient sidewalk or foot pavement, constructed of stone, hard brick, artificial stone, or pine plank laid smooth not less than six feet wide, and upon the failure of a lot owner to construct, repair or maintain such sidewalk or foot pavement as required, the city had the right to construct the same and enforce, in a court of chancery, the cost of construction upon the lot or lots along which such sidewalks or pavements are constructed or ■ repaired.</p> <p>2. A bill alleged that defendant, a lot owner in the city of Jacksonville, had not complied with the provisions of the ordinance of the city passed September 30, 1889, in reference to keeping and repairing a sidewalk at a designated locality in the city and the answer denied positively the allegations of the bill: Held, The sworn answer not being overcome by two witnesses or one witness and corroborating circumstances, that the bill was properly dismissed.</p> <p>3. The finding of a chancellor on the testimony taken before an examiner will not be given the same effect as the verdict of a jury, but the chancellor’s conclusions solely on facts will not be reversed unless it clearly appears that he has erred in such conclusions.</p>

STATEMENT. A bill was filed in this case by appellee against appellants for the purpose of preventing and removing .alleged obstructions and encroachments in a street in the town of Bartow.

Writ of Error to the Circuit Court for Escambia, county. STATEMENT.

.STATEMENT. On April 25, 1891, an action of assumpsit was begun in the Circuit Court of Polk county by appellant against appellee, the declaration alleging, substantially, that the plaintiff complains of the defendant, Mrs. II.

<p>Appeal from the Circuit Court for Volusia county.</p> <p>The facts in the case are stated in the opinion of the Court.</p>

<p>Writ of Error to the Circuit Court for Hillsborough county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>The act of 1889, chapter 3891, laws of Florida, prohibits both preferential and partial assignments, and an assignment by a partnership firm of only the joint or partnership property, and not embracing the individual property of the me mbers of the firm, is void upon its face?</p>

STATEMENT. On February 1, 1892, appellee (plaintiff below) filed his declaration, containing two counts, in an action begun by him against appellant in the Circuit Court of Suwannee county, alleging by his first count, substantially, that plaintiff complained of defendant, who liad been summoned to answer plaintiff in an action for breach of contract, for that whereas the defendant claimed to be (¡he owner of large bodies of lands in said county, and elsewhere in the State,…

STATEMENT. On the 13th clay of October, 1890, an affidavit in behalf of appellant, Eliza Iludnall, was filed with the Clerk of the Circuit Court of Duval county, in which it is alleged that Florence Keep was indebted to her, Eliza Hndnall, in the sum of $295.75 for the rent of a certain described room in a building in the city of Jacksonville belonging to her, and that said rent was due and payable in money, being the balance due for the period of time from November, 1886,…

STATEMENT. The appellant on June 19, 1891, filed his bill in the-. Circuit Court of Marion county against appellees, praying that a tax deed under which it was alleged theappellee, Ellsworth, claimed title to certain lands owned by R. S. Spaulding at the time of his death and which were then in possession of appellant as administrator be declared invalid as a cloud on the title.

<p>Writ of Error to the Circuit Court for Duval county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

Writ of Error to the Circuit Court for Hillsborough county. The facts in the case are stated in the opinion of the-court.

STATEMENT. This was a bill for specific performance originally filed April 4, 1889, by appellant and his wife Marie E. Shouse, against the appellee in the Circuit Court of Clay county, and subsequently, after the death of' the said Marie E., revived in the name of the present-appellant, in his own right, and as administrator of her estate.

<p>Appeal from the Circuit Court for Hillsborough county.</p> <p>STATEMENT.</p> <p>On April 2, 1888, the appellant, by her next friend, filed her bill against appellees in the Circuit Court of Hillsborough county, which, after being held insufficient on demurrers, was subsequently amended by additions so that it alleged the recovery on November 7, 1887, by defendants Meinhard Bros. & Co. of a judgment in the Circuit Court of said county against defendant John P. Hill for $398.21, the issuance of an execution thereon on February 17, 1888;, the levy of the execution upon certain land therein described, which is alleged to be the property of the-complainant; the advertisement of the land to be sold under the levy on the first Monday in April, 1888;, copies of the judgment, execution and notice being attached as exhibits.</p> <p>It was further alleged that complainant was and had been for seventeen years a married woman, the wife of defendant Hill; that as such she owned a large amount of money, to-wit: §2,500, which subsequent to her marriage with said Hill, viz: in 1884 and 1885, she received as an inheritance from her father’s estate, who died in the State of Missouri; that after her removal with her husband to Florida he purchased with a portion of her said money the real estate levied upon, the title to which he, through mistake and without her consent, and against her wishes, took in his own name, and with other of her said money built a house and made other improvements on said land to the amount of $500 or $600, and afterwards conveyed by deed said lot, with the improvements, to complainant, as in equity he was bound to do, a copy of the conveyance being made a part of the bill.</p> <p>It was further alleged that complainant received said sum of $2,500 from her father’s estate in 1879; that her father died in Missouri in 1853; that having-received said money she, with her said husband, moved to Florida in 1879, where complainant has spent all of said $2,500 except a small sum expended before coming to this State, and except about $800, which was invested by her said husband, her agent, under the laws of Florida, in the purchase of the lot of land mentioned in the years 1884 and 1885, and the further sum of $250 invested by her husband in a five-acre tract of land near the town of Seffner; that no other money save that of complainant was or is invested in said lot levied upon, nor is any other person interested therein save complainant; that while the conveyance before mentioned is one directly from her husband to her, yet she claims that as said property was purchased and the improvements placed thereon for her, and wholly with the complainant’s money, the conveyance was good in equity, and that complainant iras a good and sufficient title thereto; that in taking the deed in his own name instead of that of complainant the said John P. Hill became and was a trustee for complainant, and held the land in trust for her until the execution and delivery of the deed of conveyance before mentioned; that if the deed be held void and of no effect, still her husband would hold the land in trust for her, and it would be contrary to equity and the laws of Florida to allow the property sold for the debts of her husband, for which she is in no way liable; that if the sale be permitted it will cast a cloud upon complainant’s title, and put her to great trouble and expense to remove same and recover the property from the purchaser at such sale. The bill prayed for an injunction against the sale and for subpoena.</p> <p>The copy of deed attached as an exhibit to the bill purported to be a deed from John P. Hill, party of the first part, to J ulia S. Hill, party of the second part, dated August 25, 1886, conveying the property described in the bill, with usual covenants of warranty, to the said complainant, and to her heirs and assigns forever, in consideration of one dollar. It was under seal and executed in the presence of two subscribing witnesses, acknowledged September 4, 1886, and filed and recorded in the office of the clerk of the Circuit Court of Hillsborough county December 3, 2886. The words of transfer in the premises are “grant, bargain, sell, convey and confirm unto the said party of the second part, and to her heirs and assigns forever, all of the following piece,” etc., and the habendum and tenendum clause of the deed reads as follows: “To have and to hold the above mentioned and described premises, with the appurtenances, and every' part thereof, to the said party of the second part, and to her heirs and assigns forever.” An injunction as prayed was granted until the further order of the court.</p> <p>On August 4, 1890, defendants, Meinhard Bros. & Co., filed their demurrer to this amended bill, by which its sufficiency was attacked upon the following grounds: 1st. A general want of equity in the bill. 2d. That it did not set forth with sufficient certainty where the property of the father of complainant was situated; or from what jurisdiction complainant received the same. 3d. That it did not allege that defendants had notice of the claims of complainant to the premises at the time credit was extended to John P. Hill. 4th. That it did not allege that defendants had notice of the claims of complainant at the time of the recovery of their judgment or levy or their execution upon the premises. 5th. That the facts set forth did not sufficiently show the existence of a trust in favor of complainant. 6th. That the bill did not set forth the date upon which the cause of action accrued upon which the defendant’s judgment and execution were based. 7th. For other good and sufficient reasons apparent upon the face of said bill.</p> <p>This demurrer was heard on November 15,1890, and the court entered a decree sustaining the same and dismissing complainant’s bill, at her cost, from which she -appealed, and assigns t his action of the court as error.</p> <p>The other facts in the case are stated in the opinion, of the court.</p>

STATEMENT. On July 14, 1891, Samuel F. Marshall, master ins chancery, filed a report in the case of William E. Mc~ Gahagan, complainant, against Thomas J. Myers, de~ fenclant, then pending in the Circuit Court of Marion county, stating that a final decree was entered in said, cause on May 27, 1887, by which it was ordered and decreed that on failure of the defendant therein to perform the decree by paying complainant the sura of money therein mentioned at the time specified,…

Writ of Error to the Circuit Court for Duval', county. STATEMENT. The plaintiff in error was convicted of murder at the spring term, 1896, Circuit Court of Duval county, and sentenced to death, from which this writ of error was sued out.

STATEMENT. On August 10,1891, relator filed in tlie Circuit Court of Orange county his petition for mandamus, wherein it was alleged that on August 4, 1890, one S. S. Puckett, as tax collector of the city of Orlando, in Orange county, oifei’ed certain real estate for sale according-to law in said city for the non-payment of taxes assessed against the same for the year 1889, together with the costs and charges due therewith, which taxes-w.ere then and there due said city of…

<p>Appeal from the Circuit Court for Marion county.</p> <p>STATEMENT.</p> <p>Appellant on August 26th, 1887, filed his bill for partition against Annie M. Butt Prentiss, and Thomas D. C. Prentiss, her husband, E. W. Agnew as trustee for the said Annie S. Haisley and William P. Haisley her husband, in the Circuit Court of Marion county, in which it was alleged that complainant was the owner of an undivided one-half interest in the real estate sought to be partitioned; that the other interest was formerly owned by one Alfred C. Brown, wdio had disposed of his interest in the premises to one Dr. Ze-Batt, a former husband of Mrs. Prentiss; that in 1883 Dr. ZeButt. by a deed of trust, conveyed to Mary M. Simmons, as trustee for the benefit of his said wife, the premises sought to be partitioned, and in said deed gave his said wife power to substitute another trustee, and under which power Mrs. Prentiss, after the death •of Dr. ZeButt, substituted E. W. Agnew as trustee instead of said Mary M. Simmons, and that said Annie M. B. Prentiss was at the time the bill was filed in possession of the premises, “under the same tenure thereof as her deceased husband had for the said Alfred C. Brown as the tenant in common with your orator.” Mrs. Haisley was the widow of Alfred C. Brown, then deceased, and was made a party in order that any right claimed by her in the premises might be adjudicated. Other allegations of the bill need not be stated in view of the defect of parties referred to in the opinion.</p> <p>The defendants filed a demurrer to this bill, which was overruled, and afterwards they hied an answer, which, among other things, denied any interest in the premises on the part of appellant, and claimed the entire premises to be the property of Annie M. Butt Prentiss under the trust deed mentioned in the bill, and under tax titles acquired in 1887 and 1888, and by adverse possession on the part of Dr. ZeButt and his widow, Mrs. Prentiss, for more than seven years prior to hling of the bill.</p> <p>After replication hied, the case was dismissed as to Thomas D. C. Prentiss because of a divorce a vinculo matrimonii granted to Mrs. Prentiss. Subsequently appellant suggested the death of Mrs. Prentiss, and by consent of W. P. Haisley, executor of her last will, said Haisley, as executor, became a party defendant. By agreement the testimony was taken by an examiner, who reported it to the court; and the court upon a hearing had upon the pleadings and testimony, dismissed appellant’s bill, and gave judgment against him for costs, from which he appealed. The trust deed from Dr. ZeButt to Annie M. B. Prentiss, the will of Annie M. B. Prentiss, and letters testamentary issued thereon to William P. Haisley, were not made exhibits or set forth in the pleadings, nor introduced in evidence.</p> <p>The other facts in the case are stated in the opinion -of the court.</p>

Writ of Error to the Circuit Court for Madison •county. STATEMENT.

Writ of Error to the Circuit Court for Duval ■county. STATK.M KNT. The plaintiff in error was tried and convicted at the 'Spring term, 1896, Circuit Court of Duval county, for the crime of rape, and after overruling his motion for a new trial, the court passed sentence of death upon ■him, from which he sued out writ of error to this court. The errors assigned here are based upon certain instructions refused, and upon the sufficiency of the evidence to sustain the verdict.

<p>The facts in the case are stated in the opinion of the court.</p>

<p>Appeal from the Circuit Court for Alachua county.</p> <p>STATEMENT.</p> <p>On January 2, 1893, appellee hied his bill in the ■Circuit Court of Alachua county, against appellant and L. W.’Fennell, sheriff of said county, alleging ■that on December 2, 1892, appellant obtained judgment against appellee in the Circuit Court of said ■county for $375.77 and costs; that" execution issued the same day, and -was at the instance of appellant levied by defendant Fennell, as sheriff, upon certain real estate described in the bill, situated in said county, containing about seventy-five acres; that defendant, Fennell, had advertised the land to be sold under said execution on January 2, 1893; that subsequent to-the levy appellee notified the defendant sheriff in writing under oath; that he claimed said land as a part of his homestead and so regarded it; that when the judgment was rendered, and for twenty-five years previous thereto, appellee was a farmer, obtaining his livelihood only by cultivating the ground; that he had’owned the-land levied upon more than ten years; had purchased it for farming alone, and had used it and was then using it for that purpose only; that he was at the time of the purchase and at the time of filing the bill, the head of a family; that he purchased the land for a homestead for himself, his wife and children, and had ever considered and then considered it his homestead, secured to him by the laws of Florida; that for convenience appellee purchased four acres of land situated about four hundred yards from the lands described in the bill, between which were situated other tracts of land not owned or occupied by appellee, upon which four acres appellee built a dwelling in which he then resided; but that he had always occupied and used and was then using the four- acre tract for the same purpose as the land levied upon, i. e. raising farm products as well as for a dwelling; that in locating his dwelling upon the four-acre tract appellee never relinquished or abandoned his homestead rights, but had always adhered to them; that notwithstanding the notice given by appellee to the defendant sheriff, said defendant intended and would proceed to sell the lands on January 2, 1893, under his levy; that appellee only knew of the levy two days before filing the bill, and had not time to give notice of the application for injunction. The bill prayed that the land levied upon be set apart as a part of appellee’s homestead, and tor a temporary and permanent injunction against the proposed sale.</p> <p>The notice given to the sheriff, attached as an exhibit, informed the sheriff that appellee was the head of a family residing in Alachua county; that no lands had ever been selected by or set apart to appellee as a homestead, but that he claimed the lands levied upon as a part of¿his homestead and exempt from the proposed sale.</p> <p>The court, on the filing of the bill, granted an order •directing the clerk to issue a temporary injunction until further order, and the injunction issued on the same -day. No subpoena was ever issued to, or served upon, the appellant, but on July 7, 1893, be, after notice to appellee, moved the court to dissolve the injunction .and dismiss the bill upon the ground that there was no equity in the bill. The court refused the motion to dissolve, and from this order appellant entered his appeal.</p> <p>The other facts in the case are stated in the opinion •of the court.</p>

<p>Writ of Error to the Circuit Court for Polk county.</p> <p>The facts in the case are stated in the opinion of the-court.</p>

<p>X. An -appeal in an action at law entered in open court before the ¡Revised Statutes went into effect, in compliance with the -statute then in force, was of itself notice to an appellee; but -an attempted entry of such an appeal in violation of the statute regulating the same afforded no such notice.</p> <p>Aa appeal was entered, before the Revised Statutes went into effect, within thirty days of the commencement of the next •succeeding term of the Supreme Court, and was made returnable not to a day in said term, but to the next succeeding term. Held, That the appeal should have been entered to a -day in the next succeeding term of the appellate court, and .that the appeal entered, passing over, as it does, such term, and the going to a succeeding term, was forbidden by statute, and so defective and irregular on this account as to give no notice of itself of any appeal and to cause a dismissal.</p>

statement. Appellees sued appellant for the value of a certain-saw mill and fixtures, the property of the former, situated near the railroad track of the latter, and alleged to have been destroyed by fire, caused by the negligence of the company. The declaration contains two-counts, in substance the same, in alleging a basis of liability on the part of the defendant company.

<p>Appeal from the Circuit Court for Sumter county-</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appeal from the Circuit Court for Clay county.</p> <p>The facts in the case are stated in the opinion of the ‘court.</p>

<p>1. In a contest between creditors of an insolvent debtor and the latter’s wife over real estate purchased in her name during the husband’s indebtedness, there must be clear proof that the purchase was made with the wife’s separate funds, otherwise the presumption is that it was through means furnished by her husband.</p> <p>2. The purpose of the act of 1838, providing that in the absence of provision therein the rules of practice in the courts of equity of the United States, as prescribed by the Supreme Court thereof, under the act of Congress of May 8, 1793, should be the rules of practice of the courts of the Territory of Florida when exercising equity jurisdiction, and when the rules of practice adopted by said court and the provisions of the act do not apply, the practice of the courts should be regulated by the practice of the High Court of Chancery in England, was to make the rules of practice adopted by the Supreme Court of the United States in the equity courts of the United States applicable in chancery causes in the courts of the Territory where provision was not made on the subject in said act, whether the rules provided for were adopted before or after the passage thereof.</p> <p>3. Subsequent to the act of 1838, referred to in preceding head-note, power was conferred upon the Supreme Court of this State to make rules of practice, pleadings and proceedings for the several courts of the State, and under the act of 1873, chapter 1938, rules of practice, pleadings and proceedings were adopted by the Supreme Court, most of which were in force when the present case was tried: prior to the adoption of said rules the Supreme Court of the United States, in 1871, made an amendment to rule 41, adopted by that court for the equity courts of the United States to the effect that if the complainant m his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only; but may. nevertheless, be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or in any other incidental motion in the cause. This amendment, not being in conflict with any statutory provision of this State, or rule of this court, is applicable to the practice in our courts of chancery.</p> <p>4. If a complainant in equity desires to avoid the effect of a responsive answer as evidence against him he can, under the amendment of rule 41 adopted by the Supreme Court of the United States for the equity courts thereof, waive in his bill the oath of the defendant to his answer, otherwise the answer given under oath and responsive to the allegations of the bill will be evidence and must be overcome by two witnesses, or one witness and corroborating circumstances.</p>

<p>1. After a decree pro confesso has been regularly entered against a defendant in a chancery cause he so far loses his standing in the court as not to be entitled to notice or hearing in the future proceedings.</p> <p>2. It is not error to enter a final decree against a defendant under a default on the same day that the report of a master is filed, if the case is in a condition otherwise to be decreed.</p> <p>3. While the proceedings after a decree pro confesso are evparter and the party in default not entitled to notice, or of right to-be heard, the final decree is not one as of course according to the prayer of the bill, or as the complainant chooses to make it, but it should be made by the court according to what is-proper to be decreed upon the statements of the bill assumed, to be true.</p> <p>4. In a bill filed to enforce a mechanic’s lien under the statutes in-force prior to the adoption of the Revised Statutes, no demand was made for attorney- fees and no allegation in reference to such matter was contained in the bill, and after a decree proeonfesso complainant obtained a decree for attorney fees: Held, Without considering whether attorney fees in any case on a bill to enforce a mechanic’s lien under the statute then in force could be allowed, that the allowance of the fee[on the-bill in this case was erroneous.</p>

<p>1. To a declaration in assumpsit for the recovery of the balance due on a promissory note, a plea was filed admitting the execution of a note, but alleging that plaintiff ought not to maintain the action because at a time before the institution of the suit plaintiff had his remedy against defendant in a court of competent jurisdiction on the note in a foreclosure of the mortgage given to secure the same; and that the property described in the mortgage was sold on final decree of the court and plaintiff purchased the same and had the sale confirmed: Held, That on demurrer the plea presented no sufficient defense to the action.</p> <p>3. In the absence of a statute, or rule of court made in compliance with law, no decree in chancery for a deficiency, after a sale of the mortgaged property could be entered in a court of equity, unless it be that the debt, without the mortgage, is such that a court of chancery would have jurisdiction of it, and could render a decree for it.</p>

<p>Appeal from the Circuit Court for Marion county.</p> <p>The facts in the case are stated in the opinion of the •court.</p>

<p>1. A verdict of a jury on a capital case as follows: “We, the jury, find the defendant guilty of murder in the first degree, recommended to the mercy of the court by one,” and signed by a member of the jury as foreman, is a unanimous finding of murder in the first degree, with a recommendation of mercy by only one of the jury, and is not qualified under section 2924, Rev. Stat., as being a verdict with a recommendation of mercy by a majority of the jury.</p> <p>2. The evidence in this case held to be sufficient to sustain the verdict of murder in the first degree.</p>

<p>Writ of Error to the Circuit Court for DeSoto •county.</p> <p>The facts in the case are stated in the opinion of the ■court.</p>

<p>Appeal from the Circuit Court for Yolusia county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

STATEMENT. The mandate issued in this cause when before this-court at the January Term, A. D. 1895, reads as follows, viz: “Whereas,… Held: owned and operated by a company known as the Florida -Central Railroad Company during all the years of 1879, 1880 and 1881, and the Edward J. Reed who bought the said line at judicial sale under the decree in like enforcement of said statutory liens at a sale made on January 6, 1882, -was himself and his associates an entire stranger…

STATEMENT. The bill in this case was filed by appellee, as complainant, against appellant, as defendant.

<p>LIBEL — NEWSPAPER ARTICLES AS EVIDENCE — HARMLESS ERROR.</p> <p>1. In a suit for libel, an article, published in a widely circulated newspaper, containing a statement of facts upon which the defendant subsequently predicates the libelous publication, if shown to have been seen, read and believed to be true by the defendant, is proper to be admitted in evidence, not in rebuttal of the plaintiff’s evidence disproving the truth of such newspaper article, nor as affirmative evidence of the truth of the statements therein made, but only in mitigation of damages for the purpose of showing that the libelous words were used upon probable grounds of suspicion calculated at the time to impress the belief of their truth, and that they were not published with the malicious purpose of falsely and wantonly •destroying character.</p> <p>2. It is discretionary with the trial judge, after the defendants have closed the introduction of their evidence in chief and the plaintiffs have introduced their rebuttal testimony, to open the case and permit the defendants to introduce new evidence tending to sustain their defense, but that is not in rebuttal of any evidence introduced on the reply by the plaintiffs.</p> <p>3. When it is apparent to an appellate court from the entire record and proofs that the jury could not properly have found otherwise than in favor of the plaintiffs, as they did find, it will, not reverse the judgment because of improper remarks by the trial judge, calculated to intimidate the jury, but will treat, such remarks as harmless error.</p>

<p>.Appeal from the Circuit Court for Jackson county.</p> <p>STATEMENT.</p> <p>Oil the 30th of December, 1889, Annie E. Booth and her husbapd, Willie R. Booth, filed their bill in equity in the Circuit Court of Jackson county against Bartlett A. Hinson and William M. Farrior, as executors of Hadley Hinson, deceased, in which it was alleged in substance that Hadley Hinson, a resident and citizen of Jackson county, Florida, died in said county in February, 1889. That prior to his death the said Hadley Hinson, on the 20th of February, 1886, made and executed as and for his last will and testament the following paper:</p> <p>“State of Alabama, 1 Geneva County. j</p> <p>Know all men by these presents that I, Hadley Hinson, of the county of Geneva, town of Geneva, and State of Alabama, considering the uncertainty of this life and being of sound mind and memory, do make and declare and publish this my last will and testament:</p> <p>1st. I desire that all my just debts be paid with as little delay as possible.</p> <p>2d. I give and bequeath to my beloved wife, Elizabeth A. Hinson, all my household and kitchen furniture of every kind and description and one thousand •dollars in gold, to be paid to her by my executors hereinafter named and mentioned.</p> <p>3d. I give and bequeath to my sons, Bartlett A: Hinson and Joseph Hinson and James B. Hinson, each two hundred dollars; and to my son, Green A. Hinson, three hundred dollars; and to my daughter, Elizabeth Stearns, four hundred dollars; and to my daughter, Etta Hutchinson, wife of Allia A. Hutchinson, eight hundred dollars, solely for the use and benefit of herself and her children, and in no event for the same or any part thereof to be applied to the payment of any debts ■or contracts of her said husband.</p> <p>4th. I give and bequeath to my two grandchildren, Allie Hinson and Annie Hihson, heirs of my son, William H. Hinson, one hundred dollars each, to be paid to their mother for their use and benefit by my executors. She, their mother, Annie Farrior, is not to be required to give bond.</p> <p>5th. I hereby grant the power to my executors to take charge of my real estate, if any, and sell privately or at highest bidder and execute titles to the same and then divide the net proceeds of the same, with the balance of my estate not hereinbefore mentioned or disposed of, equal between all my children. I request that my executors after my decease, I desire that my executors carry out this request with as little expense as possible.</p> <p>6th. I nominate and appoint my two sons Bartlett A. Hinson and Joseph Hinson and my worthy friend William Farrior to be the executors of this my last will and testament, and I hereby direct that they shall not be required to give bonds as such executors. In testimony whereof I have to this my last will and testament subscribed my name and affixed my seal this 22d day of February, A. I). 1886.</p> <p>Hadley Hinson, Sen. (Seal).</p> <p>Signed, sealed and delivered and published by the said Hadley Hinson as and for his last will and testament in presence of us, who, at his request, and in his presence, and of each other, subscribed our names as witnesses hereto this 22d day of February, A. D. 1886.</p> <p>John A. Campbell,</p> <p>W. C. McLaughlin.”</p> <p>That by said will the defendants and one Joseph Hinson were nominated as the executors thereof. That said will has been duly probated in the office of the County Judge of Jackson county, Florida. That the defendants have qualified as executors but that Joseph. Hinson had not qualified as such. That the grandchild Allie Hinson to whom a specific bequest was made in said will was never married but died while yet a minor before the death of said Hadley Hinson. That the said Annie E. Hinson since the death of said Hadley has intermarried with the complainant Willie R. Booth. That Elizabeth A. Hinson the widow of Hadley died on the 16th of June, 1889, after the death of said Hadley. That the legatees named in said will except the said Elizabeth A. Hinson and the said Allie Hinson, who have died as stated, are the only heirs at law of the said Hadley. That Hadley Hinson at his death was possessed of in cash and good and solvent securities of a large sum of money, the exact amount not being known to complainants, but somewhere between seven and ten thousand dollars or more, and other personal property and some real estate. That immediately after the death of the said Hadley, the-defendant Bartlett A. Hinson took possession of all his visible property and is still in possession thereof except the sum of about 8600 that they are informed and believe is in the possession of the defendant W. M. Farrior. That Bartlett A. Hinson, as they are informed and believe, has paid all of the specific legacies bequeathed by said will, but that he has a large-surplus still on hand or should have the same. That the said Hadley owed no debts of consequence, and the same are or should have been paid long ago, and the said estate should be fully administered and the residue in the hands of the executors should be distributed. That the said Bartlett A. Hinson refuses tosíate to the complainants or to his co-executor and co-defendant the status of the estate of said Hadley Hinson, and has never filed any appraisement, inventory or account of the same in the office of the County Judge of Jackson county. That the said Bartlett A. Hinson further says, pretends and claims that the complainant Annie E. Booth, under the will of said Hadley, has no further interest as a legatee or as an heir at law in the estate of said Hadley, and that he does not intend to pay her anything further than the specific legacy he has already paid her, and that he will administer and distribute said estate according to-his interpretation of said will or testament. That he claims to be justified in this course by the 5th item of said will, and that the said Annie E. Booth being a grand-child does not share in the distribution of the residue of said estate. Said item of the will is subunitted by the bill to the court for construction and for -decree for its proper execution. That in said will the ■said Hadley Hinson made equal provision for all his 'children and grand-children without preference of -one over the other. The difference in the amounts bequeathed to them is to be accounted for by the fact that he had in his lifetime-made advances to those to -whom the smaller amounts were left, or to the father •of complainant and the said Allie Hinson in excess of ■the advances, if any, to those to whom the larger amounts were bequeathed. That said Hadley was on the very best of terms of love and friendship with the complainant, Annie E. Booth, her mother and brother. That they were minors and orphans, and much more needy objects of his bounty, and that he had no intention to cut them off with a mere pittance. That they believe a proper construction of the said' will .is that said Hadley used in the said fifth item thereof the word “children” not in a strict sense, but as a nomen ‘collectivum, synonymous with offsprings or descendants. That said Hadley at the time of his death, and for some time before, was a resident of Jackson county, Florida, and the head of a family residing in said ■county and State, and that as such head of a family .he was entitled to the benefit of the constitution of the State of Florida exempting $1000 worth of his personal property from forced sale under any process of law, and that said personal property inured to the widow and heirs of said Hadley Hinson, and, having-children, could not be disposed of by last will and testament, and is not assets in the hands of said executors, and that said last will as to said exempt personal property is null and void. That said will was mot attested and subscribed in the presence of the said testator by three or more witnesses, as provided by statute, and that, in so far as it attempts to dispose of lands, tenements and hereditaments or any estate therein, the same is utterly void and of no effect. That the said defendant Bartlett A. Hinson, being executor, has never given any bond for the proper administration of said estate. That he is personally and individually wholly and utterly insolvent. That if he proceeds to administer and distribute said estate according to his construction of said will the complainant will be wholly remediless in the premises, and great and irreparable injury will be done to complainants unless such contemplated course of administration is averted by the injunction of the court and said defendant be required to give bond for the proper administration of said estate. The bill prays that said will be construed by the court. That so much and such parts thereof as are invalid or void be so declared by the court, and that a proper construction be given to such parts as are valid and in force, and that proper directions for the execution of the trusts by said will created and for the administration of said estate be given to the defendants as executors. That the defendants as executors be decreed to pay over to complainants at once a one-seventh undivided interest in the exempt personal property of said Hadley. Thau Bartlett A. Hinson be required to give bond with sureties for the performance of his duties as executor. That the defendants as executors be enjoined from distributing the residue of said estate until the further order of the court after a proper construction is made of said will. That in the event the said Bartlett A. Hinson shall fail or refuse to give such bond for the proper performance of his duties as executor as may be directed, then that he may be removed and deposed as such executor and that he turn over all the assets-in his hands to William M. Farrior his co-executor and co-defendant. That the defendants as executors be decreed to render a full, true and perfect accounting of their administration of the estate, and that upon the coming in of said account that one-seventh of the clear residue be paid to complainants for the distributive share of the said Annie E. Booth in the same. There is also the usual prayer for subpoena and general relief.</p> <p>An injunction was granted as prayed for in the bill and the defendant Bartlett A. Hinson was ordered to-give bond to the complainant Annie E. Booth for a proper accounting • to her for her interest in said estate.</p> <p>The defendant William M. Farrior answered the bill admitting all the allegations thereof to be true.</p> <p>Bartlett A. Hinson separately answered the bill admitting its allegations to be true, but denies that the 5th item of Hadley Hinson’s will can properly be construed as giving to the grand-children of said Hadley, especially to Annie E. Booth, the complainant, any other or further interest in his estate than the specific legacy therein made to her; and denies that said grand-children were therein placed upon an equal footing with his own children. His answer admits-that said will was not attested by three witnesses as required by the law of Florida, to convey real estate, but says that it was executed in the State of Alabama where the said Hadley resided at the time of its execution, and that by the law of Alabama only two witnesses are required to a will to effect the valid conveyance of both real and personal property. That said will has been duly probated in Geneva county, Alabama. as well as in Jackson county, Florida, as the said Hadley Hinson owned both real and personal property in both States, and one of the executors, Joseph Hinson, who has qualified as executor of said will in the State of Alabama where he resides has not been made a party to the bill, and the defendant, in the answer, pleads in abatement the non-rejoinder of the said Joseph Hinson in this suit. The answer denies that the complainant Annie E. Booth as legatee or heir at law is entitled to anything further out of said estate than the specific legacy left her by the will, that has been fully paid to her. His answer also expresses a desire that the court shall construe the will, and his willingness and readiness to comply with ■such construction. That there are about 400 acres of land belonging to said estate located in Florida and in Alabama.</p> <p>Replication was filed to the answer, and a voluminous amount of testimony was taken and reported to the court chiefly aimed at establishing and contradicting the inebriate habits of Bartlett A. Hinson, and to ■establish the kindly and affectionate relations existing between Hadley Hinson and his complainant grand-child Annie E. Booth and her mother, and to ■establish and contradict the loss of confidence by Hadley Hinson before his death in both Bartlett A. Hinson and William M. Farrior named as executors in his will.</p> <p>After all of this evidence was taken but before it was reported to the court, by consent of counsel fbr all parties, the complainant Willie R. Booth filed his bill of revivor in the nature of a supplemental bill, ■ which, after reciting the proceedings already had in the cause, alleges: That while the said cause was in the position stated, on the 15 th day of September, 1890, his wife, the complainant, Annie E. Booth died intestate. That she left no children, and was not indebted to any person whomsoever at her death, and that he the said Willie R. Booth is her sole heir at law, and entitled as such heir, to the same relief to which she would have been entitled under the original bill. That said cause has become abated by her decease. That since the bringing of the original suit Joseph Hinson has qualified as executor of the will of Hadley Hinson, and should be made a party defendant. It prays for a revival of the suit in the name of and in favor of the said Willie R. Booth, and that Joseph Hinson as executor, be brought in as a party defendant, and that the same relief may be granted as. originally prayed for.</p> <p>This supplemental bill in the nature of a bill of review, was demurred to on various grounds not necessary to be stated. The demurrer was overruled and the two defendants Bartlett A. and Joseph Hinson filed an answer thereto in which they adopt the answer already filed by Bartlett to the original bill, and they deny that the said Annie E. Booth or the said Willie-R. Booth as her heir at law, have any interest whatsoever in the estate of Hadley Hinson other than the specific legacy left her in the will which had been fully paid to her in her lifetime.</p> <p>Replication was filed to this answer and the cause was brought on for final hearing upon the pleadings- and proofs taken, and the following final decree was rendered on the 8th day of October, 1891: “This cause coming on for hearing upon the pleadings and proof the argument of the solicitors for the respective parties being heard, upon, consideration thereof it was ordered, adjudged and decreed that the last will and' testament of TIadley Hinson, deceased, was inoperative to convey the real estate of said testator situated in the State of Florida, but that said real estate is assets of the estate of the said Hadley Hinson, deceased, and that the defendants as executors do proceed to-administer upon the same in accordance with the statutes of the State of Florida regulating the administration, settlement and distribution of estates of deceased, persons. That the term “childrenU in the fifth item of the last will and testament of the said Hadley Hinson, deceased, is not to be held and construed to mean or include the said Annie E. Booth, the grand-child of said Hadley Hinson, deceased. It is further ordered, adjudged and decreed that the said Hadley Hinson at the rime of his death was the head of a family residing in the county of Jackson, State of Florida, andas such head of a family, was entitled to the benefit of the Constitution and laws of the State of Florida, exempting one thousand dollars worth of personal property from forced sale under process of law; that the last will and testament of said Hadley Hinson, dec eased, was inoperative to convey said exempt property; that the same upon the death of said Hadley Hinson, inured to the widow and heirs of said Hadley Hinson, and that Annie E. Booth, being an heir at-law both of Hadley Hinson and Elizabeth Hinson, his-widow, was entitled to one-seventh''of said one thous- and dollars exemption; and it is ordered, adjudged and decreed that the defendants as executors or either one of them pay over forthwith to the complainant Willie R. Booth the said share of said Annie E. Booth amounting to one hundred and forty-two and 85-lOOths; ■dollars (142.85) together with interest upon the same from the 30th day of December, A. D. 1889. It is ■ordered, adjudged and decreed that the defendants be taxed with the costs of these proceedings, except the ■sum of fifteen dollars for taking depositions herein; that the said sum of fifteen dollars be taxed against ■complainant Willie R. Booth, and the defendants be •■authorized to retain and deduct the same from the amount hereinbefore decreed to be paid over to said complainant. That the costs hereinbefore decreed, be taxed by the clerk of this court and that execution in ■ordinary form do issue therefor. That all moneys for ■costs or otherwise properly paid out by the defendants under this decree be allowed them in their settlement •of their accounts as executors by the county j udge of .Jackson county, Florida. Done, ordered and decreed .at chambers in Marianna, Jackson county, Florida, .this the 8th day of October, A. D. 1891.</p> <p>W. D. Barnes, Judge.”</p> <p>From this decree the defendants have taken their appeal to this court.</p> <p>The other facts in the case are stated in the opinion of the court.</p>

<p>HOMESTEAD — ABANDONMENT OF SUBJF.CTS IT TO LIENS OF JUDGMENTS.</p> <p>1. Under the homestead provisions of the Constitution of Florida an attempted transfer of the legal title by the husband to his wife of his homestead does not and can not give to any judgment against him any other, further or greater lien or right in or to such homestead than it had before such attempted transfer of the legal title was made, if the right to the exemption of the homestead has not'otherwise been forfeited. If the exempted property continues in good faith to be the homestead or place of actual permanent abode of the husband and his family, without any permanent abandonment thereof, then his judgment creditors have no, such lien upon or interest therein as will give them a right to question the validity of an attempted transfer of the legal title thereto by the husband to the wife.</p> <p>2. While the law is well settled that a temporary absence in search of health or pleasure, or on another place for purposes of business, will not deprive the homestead claimant of his right, unless it be apparent that there was a design of permanent abandonment; yet it is equally well settled that & permanent abandonment of the homestead as a bona fide home and place of permanent abode strips it of its homestead character, and deprives the claimant of the right to exempt it from sale for his debts.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts in the case are stated in the opinion of the-court.</p>

STATEMENT. In November, 1889, appellants filed a bill against appellees twenty-seven in number, and as amended it alleges in substance as follows: In 1835, one James Watson entered lots one (1) two (2) and three (3) in section one (1), township four (4), range fifteen (15), south and west situated in Washington county, Florida, containing 245 4-100 acres, for which he received a patent in April, 1837.

<p>Appeal from the Circuit Court for Washington county.</p> <p>The facts in the case are stated in the opinion of the-court.</p>

Writ of Error to the Circuit Court for Orange «county. STATEMENT.

Writ of Error to tlie Circuit Court for Duval county. Application for Rehearing. The facts in the case are stated in the opinion of the court.

<p>Appeal from Circuit Court of Marion county..</p>

<p>Ají peal from Circuit Court Duval county.</p>

<p>Writ of Error to Circuit Court, Hillsborough county.</p>

<p>Writ of Error to Circuit Court Escambia county.</p>

<p>Appeal from Circuit Court, Manatee county.</p>

<p>Appeal from Circuit Court DeSoto county.</p>

<p>Writ of Error to Circuit Court Hillsborough county.</p>

<p>Writ of Error to Circuit Court Duval county.</p>

<p>Appeal from Circuit Court, Washington county.</p>

<p>Writ of Error to Circuit Court Orange county.</p>

<p>CRIMINAL LAW — SUFFICIENCY OF EVIDENCE TO SUSTAIN CONVICTION.</p> <p>"Where there are no other errors assigned or argued in a criminal case on writ of error, except that the verdict is not supported by the evidence, and the court finds that the evidence in the record is sufficient to sustain the verdict, the judgment will be affirmed.</p>

<p>’Writ of Error to the Circuit Court for Polk county.</p> <p>The facts in the case are stated in the opinion of the -court.</p>

<p>CRIMINAL LAW — VERDICT SUSTAINED BY EVIDENCE AFFIRMED.</p> <p>■Where the only error urged or assigned in a criminal case is that the verdict is contrary to the evidence, and is not supported thereby, the judgment will be affirmed, if the appellate court is of the opinion that the evidence in the record does sustain the verdict found.</p>

<p>Writ of Error to the Circuit Court for Yolusia county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>"CRIMINAL LAW — GAMING AND GAMBLING HOUSE-HOUSE KEPT FOR SELLING POOLS ON HORSE-RACE IS A GAMBLING HOUSE — CHARGING OFFENSE IN LANGUAGE OF STATUTE — PRINCIPAL AND AGENT.</p> <p>1. Where a statute fully defines the offense that it creates it is ordinarily sufficient for an indictment to charge the defendant with all the acts within the statutory definition, substantially in the words of the statute, without further expansion. Sec" tion 2644 of the Revised Statutes, prohibiting the keeping of a table, room house or other place for the purpose of gaming or gambling, held to fall within this rule, and to so define the offense that it creates as that an indictment charging such offense substantially in its language will be sufficient.</p> <p>'3. The terms gaming and gambling, as used in this statute to suppress gambling houses, are 'similar in meaning. The wagering, betting or laying of money or other thing of value upon the transpiring of any event whatsoever, whether it be upon the result of a game of chance, or upon a contest of skill, strength, speed or endurance, whereby one party gains and the other loses something for nothing, whether the parties betting be the actors in the event upon which'/their wager is laid or not, is gaming or gambling within the meaning of this statute.</p> <p>3. The purpose of Section 2644 of the[Revised Statutes was to prohibit, not the gaming or gambling itself, but the keeping of a house or other place for any manner of gaming or gambling. If a house is kept for the purpose of having [money or other thing of value staked, bet or wagered therein, upon any re- . suit or event whatsoever, such house falls ¡within the inhibition of this statute, whether the means adopted for the decision of the question as to who is the,¡winner or loser of the amount or thing wagered be a game prohibited by law or not..</p> <p>4. The keeping of a house, room or other place[for the purpose of betting upon horse-races conducted [at a[distant point, such, bets being made in the form of a sale and ¡purchase of what are known as “pools” upon such races, falls within the inhi-. bition of this statute prohibiting the keeping of a gambling house.</p> <p>5. Sections 2644 and 2645 of the Revised Statutes[makes all the parties concerned in the keeping of a gambling house principals>• whether in the conduct thereof the one acts as agent or clerk of another, or on his own behalf as principal. The first of the two sections makes the principal liable whether he conducts the establishment in person, or has it conducted for him by an agent, clerk or servant. When conducted by an agent, clerk or servant, the second of the two mentioned sections, makes such agent, clerk or servant a principal in the crime equally punishable with his employer, and it is not necessary to indict or charge him as agent, but he can be informed against as principal and convicted upon proof showing that he violated the law in the capacity of agent for another,</p>

<p>Where the decree of a chancellor is unsupported by and contrary to-the evidence, it will be reversed by this court on appeal.</p>

STATEMENT. Appellant brought an action of assumpsit against appellee in the Circuit Court of Hillsborough county, the declaration filed June 2, 1890, containing the usual common counts, including one for money paid by plaintiff for the use of defendant at his request. The principal matter in issue between the parties was an item in plaintiff’s bill of particulars, “To account of settlement with Wall & Knight, $750,” dated April 30, 1890.

<p>Writ of Error to the Circuit Court for Hamilton county.</p> <p>The facts in the case are stated in the opinion of the -court.</p>

Writ of Error to the Circuit Court for Holmes •county. ■ STATEMENT. On March 16, 1893, defendant in error instituted in the Circuit Court of Holmes county, an action of ejectment against plaintiffs in error, to recover title to, and possession of, lots Nos. 1, 2 and 3 of section 20, Tp. 7 N., of H. 14 W., the declaration being substantially 'in the statutory form.

Writ of Error to the Circuit Court for Liberty ■county. The facts in the case are stated in the opinion of the ■ court'.

<p>• CONSTITUTIONAL LAW — OFFICE AND OFFICER -STATE OFFICER — CHAPTER 4539 LAWS APPROVED JUNE 5, 1897, CREATING A STATE BOARD OF LEGAL EXAMINERS DECLARED UNCONSTITUTIONAL.</p> <p>.1. The term “office” implies a delegation cf a portion of the sovereign power to, and possession ot it by, the person filling the office, a public office being an agency for the State, and the person v hose duty it is to perform the agency being a public-officer. The term embraces the idea of tenure, duration and duties, and has respect to a public trust to be exercised in behalf of government, and not to a merely transient, occasional or incidental employment. A person in the service of the government who derives his position from a duly and legally authorized election or appointment, whose duties are continuous in their nature and defined by rules prescribed by government, and not by contract, consisting of the exercise of important public powers, trusts or duties, as a part of the regular administration of -the government, the place and the duties remaining, though the incumbent dies or is changed; every office in the constitutional meaning of the term implying an authority to exercise some portion of the sovereign power, either in making, executing or administering the laws. A State officer is one who falls within this definition and whose field for the exercise of his jurisdiction, duties and powers is co-extensive with the limits of the State and extends to every part of it.</p> <p>2. Chapter 4539 laws approved June 5, 1897, entitled: “An Act toSeguíate Admissions to the Bar of this State, to Create a Board of Legal Examiners, and to provide for a Uniform System of Legal Examinations,” held, to be unconstitutional and void because it creates State officers in the Board of Legal Examiners therein provided for, and fails to provide for their election by the people or appointment by the Governor, as required by the Constitution, but makes them appointive by the Supreme Court, contrary to the Constitution; and, contrary to the Constitution, fixes their terms of office for a period longer-than four years.</p>

STATEMENT. On May 29, 1891, appellee filed her bill against appellant in the Circuit Court of Alachua county, alleging that she was the widow of one William A. Maxwell, deceased; that appellant was… Held: enjoyed, used and disposed of by his said wife as her separate property.” This paper was dated October 27, 1877. It was under seal, and executed in the presence of two subscribing witnesses, both of whom died before the testimony in this case was taken.

<p>1. Under section 1308 Revised Statutes this court is invested with, and the inferior courts are divested of. the power to adopt rules of practice of a permanent and general nature anl convenient simply, not necessary, to the administration of law by such inferior courts.</p> <p>2. The Circuit Courts in this State have no power to adopt a rule of practice to the effect that no cause standing for argument upon pleadings in cases at law shall be submitted to the court, until the party moving shall have furnished the court and opposite party a brief abstract of the matter submitted, containing the substance of the material pleadings, facts and documents relied on, and the points of law and fact intended to be-presented in ai’gument with a citation of the authorities, that upon such presentation the court may determine whether an extended or other oral discussion of the facts or law shall be allowed and may thereupon designate the time, place and limit for such discussion, that the court may also designate-the time within which the opposite party shall submit in writing his abstract of the cause pending, points of law and facts to be presented in argument wi.th citation of authorities, relied on, and also the time within which the moving party may reply in writing.</p>

<p>The evidence in this case examined and found sufficient to sustain the verdict.</p>

<p>Where there is evidence legally sufficient to supp.ort a verdict, this court will not reverse a ruling of the trial court refusing a new trial on the ground of insufficient evidence, even though there be conflicts in the evidence, unless the preponderance is such that the jury must have been improperly influenced to render such verdict.</p>

<p>1. A plea seeking to make available the privilege accorded to a defendant by our statutes, of being sued in a county other than that in which the action is brought, is a plea in abatement, and not a plea to the jurisdiction of the court.</p> <p>2. Where issue has been joined upon a plea in abatement (there being no other pleas in the case), and the issue submitted to a jury, resulting in verdict for plaintiff, the court should award judgment peremptory, quod recuperet, and not a default for want of a plea.</p> <p>3. Where a plea in abatement presents defendant’s only defense, upon a trial of the issue joined thereon the jury should, if they find for the plaintiff, assess the damages, in order that the court may enter final judgment. Where, however, the jury fails to assess the damages, the court may proceed in any other legal manner to ascertain the amount of plaintiff’s recovery; but it can not enter judgment by default for want of a plea, with instructions to the clerk to assess the damages where the demand sued upon is unliquidated.</p>

<p>Writ of Error to the Circuit Court for Hillsborough county.</p> <p>The facts in the case are stated in the opinion.</p>

<p>1. If irrelevant or immaterial testimony be given in answer to a proper interrogatory, the appropriate remedy is by motion to strike the testimony, and not by objections to the interrogatory.</p> <p>3. The burden of proof is upon a defendant pleading payment to sustain such plea by a preponderance of evidence.</p> <p>3. An agent employed by his principal “as traveling salesman and soliciting work and orders of all kinds and descriptions” done by the principal in the line of its business, all orders to be subject to the principal’s acceptance, who has no express authority to make collections for his principal, and who has not been held out by the principal as possessing such authority, has no implied power to collect the amount due his principal for printed circulars for which the agent takes and forwards an order addressed to his principal, and which are subsequently delivered by a carrier, and not by the agent.</p> <p>4. An agent’s declarations are insufficient to establish the extent of his authority, in the absence of evidence that such declarations were known to, and acquiesced in, or ratified, by his principal.</p> <p>5. Payment to an agent to be binding upon the principal must be made to an agent having express or implied authority to collect, or who has been held out to the debtor or the public by his principal as possessing authority to make collections. Payment to any other agent, under the bona fide belief that such other agent has authority to collect, will not bind the principal, in the absence of a ratification of such payment by the principal.</p>

<p>Where there is a material variance between the writ and the affidavit and bond in an action of replevin, and plaintiff makes seasonable application to amend the writ, so as to cure the variance, the court should, under the provisions of section 1723 Revised Statutes, permit the amendment, and decline to quash the writ because of such variance.</p>

STATEMENT. Appellee on July 23d, 1890, brought suit against appellants in the Circuit Court of Alachua county; the amended declaration filed October 28, 1890, alleging, in substance, that in the latter part of the year 1882' the plaintiff was hired by his father to defendants, who then and still were conducting a saw mill business at the town or station called Campville in said county, to be employed by defendants in the work of making or putting together vegetable and fruit…

Writ of Error to the Circuit Court for Marion county. STATEMENT. The defendant in error on February 10, 1893, began an action of assumpsit against the plaintiffs in error in the Circuit Court of Marion county. .

STATEMENT, A full statement of the numerous lengthy pleadings and depositions contained in this very voluminous record would fill many pages of our reports. For this reason we shall not attempt a complete history of the case, but will endeavor to state concisely the main facts bearing upon those assignments of error only, which appellants have argued in their briefs here.

<p>Appeal from the Circuit Court for Gradsden ■county.</p> <p>STATEMENT.</p> <p>On June 4, 1890, appellees filed their bill in equity in the Circuit Court of Gfadsden county making appellant and one Mary A. Fraleigh defendants thereto. An amended bill was filed by appellees April 16, 1891, whereby it was alleged that on January 18, 1864, Emanuel M. Fraleigh, husband of defendant Mary A. Fraleigh, executed a trust deed of conveyance to one Samuel B. Love, a certified copy of which was made a part of the bill. The deed referred to purported to be made for and in consideration of the great love and affection which the grantor bore towards his wife Mary A. Fraleigh and his children, Lillie C., Cornelia M., •and Clara W. Fraleigh, as well as in consideration of the sum of ten dollars to the grantor paid; and it conveyed to Samuel B. Love, his heirs and assigns, certain real and personal property in Gadsden county therein described. The deed contained the following provisions: “To have and to hold the afore granted property to the .said S. B. Love, his heirs and assigns, in trust nevertheless, for the sole use of the said Mary A. Fraleigh, wife of the said E. M. Fraleigh, for and during her natural life, and after her death to such •children as she may have living at the time of her ■death, share and share alike, with power to the said Samuel B. Love to sell any portion of said trust estate and to reinvest the proceeds in such other property, subject to the above described trust, as he shall deem most for the interest of said trust estate, with power to the said Mary A. Fraleigh to appoint and choose by her writing under her seal another trustee instead of the said Samuel B. Love, whenever the said Samuel B. Love shall wish to resign said trust or shall die leaving the same unfulfilled, said trustee so appointed taking said trusteeship subject to the trust herein limited.”</p> <p>It was further shown by the amended bill that on May 23, 1866, Samuel B. Love executed under seal, and in the presence of two subscribing witnesses, an instrument in writing whereby, after reciting that said Love was holding in trust certain lands, etc., for Mary A. Fraleigh and her children, more fully set forth and described in the trust deed above described, he did thereby resign and relinquish said trusteeship, as by the provisions of said trust deed he claimed the right and authority to do; and on the same day Mary A. Fraleigh executed under seal, and in the presence of two subscribing witnesses, an instrument in writing whereby, after reciting the trust deed before referred to and its provision empowering her to appoint or choose another trustee whenever the said Love wished to resign, and that said Love had resigned the trusteeship leaving same unfulfilled, she did by virtue of the authority vested in her by said trust deed, constitute and appoint E. M. Fraleigh trustee in lieu of said Love. Each of these instruments was proven by a subscribing witness and recorded in the clerk’s office of Gadsden county on August 23, 1866.</p> <p>It was further alleged by said amended bill that appellant was in possession of certain lands described in the trust deed, claiming title to same by virtue of a deed from one Samuel Hamlin, who received deeds to said lands from Mary A. and E. M. Fraleigh, the latter pretending to execute said deeds as trustee, dated January 20, 1874; that the property embraced in said deed had “run down,” and was “going to waste,” and that appellees had received no benefits, rents or profits therefrom since the date of said deed to Hamlin; that appellant and Samuel Hamlin combined and confederated with E. M. Fraleigh and other persons to destroy the force and effect of the trust deed, and to deprive appellees of all benefits that might arise from the proper control and management of the property, in order that appellant might obtain title thereto and possession thereof, and that the title passed to the said Samuel Hamlin for little or no consideration; that the proceeds of the sale were not reinvested as required by the trust deed, and that appellant knew that fact; that the appointment of Emanuel M. Fraleigh as trustee was unauthorized, null and void, the said Mary A. Fraleigh being under coverture, the wife of said E.. M. Fraleigh, at the time of making such appointment; that the deeds, made by virtue of said appointment,' by E. M. Fraleigh, pretended trustee, and the said Mary A. Fraleigh to Samuel Hamlin, and the one from Hamlin to appellant passed no title, and were null and void.</p> <p>It was further alleged that Samuel B. Love and E. M. Fraleigh were dead; that appellees Louis A., Albert E., Lillie F., Alliene and Emily were the only surviving children of Mary A. Fraleigh, and were all over twenty-one years of age, except Alliene and Emily who were about twenty years of age. The consideration expressed in the deeds from Fraleigh and wife to Hamlin was $700.</p> <p>The bill prayed that the appointment of E. M. Fraleigh to be trustee, the deeds to Samuel Hamlin, and the deed to appellant, be declared illegal, null and void; that appellant be required to produce the deeds in court for cancellation; that a trustee be appointed, vice Samuel B. Love, deceased, and for general relief.</p> <p>The separate answer of appellant to the amended bill of complaint filed May 19, J 891, admitted the execution of the trust deed by E. M. Fraleigh, the appointment of E. M. Fraleigh to be trustee by Mary A. Fraleigh, the resignation of S. B. Love as trustee; that appellant was in possession of certain land described in the trust deed, and claimed same under a deed from Samuel Hamlin, who acquired title to same by deeds^ from Mary A. Fraleigh, and Emanuel M. Fraleigh, as trustee, and denied that the property had run down or was going to waste, that the lands passed to Ham-'tin for little or no consideration, that the proceeds of sale were not reinvested as required by the trust deed, and that appellant knew that fact.</p> <p>Appellant by his answer also denied all charges of (Combination and confederacy made against him in the bill; and alleged that he purchased the lands menitioned in the bill from Samuel Hamlin in March, 1878, in good faith, and without notice of any equities «claimed by appellees, paying therefor the sum of $1,500.</p> <p>The ease was set down for hearing on amended bill and answer of appellant, and on November 4, 1893, a ■decree was rendered, whereby it was decreed that the appointment of E. M. ÍTaleigh to be trustee, by Marf A. Fraleigh, his wife, was illegal, null, and utterly void; that the deeds from E. M. Fraleigh, as trustee, and his wife Mary A. Fraleigh to Samuel Hamblin passed whatever right, title or interest that Mary A. Fraleigh might have had in the property attempted to be thereby conveyed, but did not pass any right, title or interest of the children of Mary A. Freleigh, and as to such children the deeds were absolutely null, void and of no effect whatever; that the deed from Hamblin to appellant passed no title whatever to any lands embraced in the original trust deed, except the interest or estate which Mary A. Fraleigh had therein, and which she might have conveyed to Samuel Hamblin in the deeds to him before mentioned, and that for any other purpose, or to any other extent, the .-said deed from Hamblin to appellant was utterly null, void and of no effect; that D. McMillan be and he was ¡thereby appointed trustee to take charge of, recover and manage the lands described in the trust deed from Fraleigh to Love, so far as the interest and estate of the children of Mary A. Fraleigh extended, subject to the same trust and powers as mentioned in the original "trust deed in respect to said children. From this decree Stearns entered his appeal on March 24, 1894, to our June term, 1894, claiming in his petition of appeal that the court erred in decreeing: 1st. That the appointment of E. M. Fraleigh as trustee, by his wife, was illegal and void. 2d. That the deeds from Fraleigh, trustee, and his wife. to Samuel Hamblin did not pass to Hamblin any right or interest of Mary A. FValeigh’s children, but that as to them the deeds were absolutely null and void. 3d. That the deed from Hamblin to appellant passed only the interest of Mary A. Fraleigh in the lands conveyed, and to any further •extent was null and void. 4th. The appointment of D. McMillan to be trustee.</p>

<p>Writ of Error to the Circuit Court for Polk county.</p> <p>The facts in the case are stated in the opinion.</p>

STATEMENT. Appellants on March 22, 1888, began an action of' assumpsit against appellee in the Circuit Couht of Suwannee county, the first count of the declaration filed March 30, 1888, alleging in substance that on April 16, 1887, in consideration that plaintiffs, at the special instance and request of defendant, would sell and deliver to one E. J. McDaniel on credit all bills of goods that might be ordered or purchased by said McDaniel, not to exceed $1,000 at any one…

Writ of Error to the Circuit Court for Duval county. STATEMENT. On September 9, 1886, defendant in error began are action of assumpsit against the plaintiff in error, the-declaration containing only common counts. On June-9, 1887, the case was by consent of parties referred to,-IT.

<p>Writ of Error to the Circuit Court for Pasco county.</p> <p>STATEMENT.</p> <p>At the spring term, 1896, of the Circuit Court of Pasco county, the plaintiff in error was indicted for hawking and peddling without license. The indictment, omitting formal parts, charged that the defendant unlawfully, on the “first day of October, A. D. 1895, and thence continually until the finding of this indictment, did engage in, carry on and conduct the business of hawker and peddler, and did during the times and on the days aforesaid, hawk and peddle at divers and sundry places in said county, sugar, rice». • meat, butter, flour and lard, without first having obtained a State license so to do, contrary,” etc. The-defendant was by consent tried by the court, without a jury, upon an agreed statement of facts, and at the spring term, 1897, was found guilty and sentenced to pay a fine of $100.</p> <p>The defendant moved in arrest of judgment upon two grounds: “1st. That the indictment does not sufficiently set out the offense as to bring it within the-statute; 2d. That the judgment is illegal in being in the alternative.” This motion being overruled, the defendant moved for a new trial upon the following grounds: 1st. That the agreed statement of facts did not show a violation of the statute; 2d. That the court did not give the defendant the benefit of every reasonable doubt arising from the evidence; 3d. That the judgment of the court was not sustained by the evidence. This motion being overruled, the defendant-sued out the present writ of error from the sentence imposed upon him, assigning as error, first, that the court erred in denying the motion in arrest of judg- • meat; second, that the court erred in refusing the notion for a new trial. By the agreed statement of facts it appears that the defendant, acting under the ■written contract hereinafter referred to, did on various dates, within two years next before the finding of the indictment, have attached to the trains on the Savannah, Florida & Western Ry. Co., passing through Pasco county, cars containing various kinds of provisions, merchandise, etc.; that these supply cars were stopped at various section houses along the line of the said railway company in Pasco county, and upon written orders (in the forms hereinafter given) issued to the employes of the railway company provisions from said cars, taking for the same orders on the railway company (in the forms hereinafter given). The storehouse from which the supplies for the car were obtained was located at Montgomery, Alabama, one of the termini of the Plant System. The Savannah Florida & Western Railway was a part of the Plant System. No license was paid by defendant for the conduct of said business. The defendant did not, within two years of the finding of the indictment, sell or oiler to sell any goods, wares or merchandise to the public, nor to any other person, except the employes of the company; nor did the defendant solicit- the public to buy any goods, wares or merchandise either from himself or his employer, butissued from said cars provisions to the employes of the railway company, only, taking no money therefor, bat orders as before stated, though provisions were often issued to employes immediately on their employment, when no wages were due them, to enable such employes- to have ^provisions upon which to begin work without delay.</p> <p>‘■The original contract between defendant and his employer, the Alabama Midland Railway Company, was dated October 1, 1889, and by its terms defendant was appointed to take charge of, run and operate for the railway company, and on its account, commissary -and supply cars, that is to say, cars from which goods, wares, merchandise, provisions, medicines, rations, etc., were issued and delivered to servants and employes of the company, at such prices as the company might from time to time fix and determine, but to •none other than those in the employment of the company, in the several counties through which the railway was operated in Alabama and Georgia; the company agreeing to furnish all cars and supplies to defendant necessary and sufficient to enable him to do the work contemplated by the contract, and to pay -defendant as compensation a commission of five per ■cent, on all moneys collected on the company’s pay roll, as evidenced of the amount deducted from the wages of the employes, and in part payment thereof for such goods, wares and merchandise as might be furnished and supplied to them from month to month under the contract. The defendant thereby agreed to be subject to the orders and regulations of the superintendent of the company for the management and ■operation of said cars, and to deliver to employes of the company the supplies and rations, before mentioned, at such places along the line of the railway as the superintendent might direct. The contract contained a provision for its termination by either party under certain conditions. By an endorsement made May 1. 1895, the terms and conditions of said contract were extended to commissary and supply cars over any of the roads and lines or divisions constituting a ■ part of the Plant System, whenever and wherever the president or general superintendent of thp Plant System might direct. The written orders before referred to were in the following forms “Montgomery, Ala., —, 189 —. Plant System Railroad Co., pay J. N. Hall, for value received, the sum of this bill, and deduct from any wages, and thirty days after date I promise to pay and do hereby waive the benefit of all laws exempting real and personal property from levy and sale. John Doe — Bulk meat-. Ham-. Flour-. Meal-. Lard-. Sugar- — -. Coffee--. Rice-. Grits-. Yeast powders-. Milk-. Tobacco-. Soap-Syrup-. Shoes- — Merchandise-. John Smith, Sec. Foreman, Sec. No.-, -Div.” “Montgomery,. Ala.,---, 189 — . Plant System of Railways Pay to J. N. Hall the amount of this bill furnished me, the sum of-. Meat---. Flour-. Tobacco-. John Doe, Brakeman emp. on 4th Div.” “Montgomery, Ala.,-, 189 — . Plant System of Railways Pay to <T. N. Hall the amount of this bill furnished me, and thirty days after date I promise to pay, for value received, the sum of $-, and deduct from my -wages;. and I do hereby waive the benefit of all laws exempting real and personal property from sale. John Doe,. Breakman employed on 4th Div. Witness Jno.. Smith.”</p> <p>Section 10, Chapter 4322, acts of 1895, provides, among other things, “any person or persons, firm or association, that shall carry on or conduct any business or profession for which a license is required, without first obtaining such license, shall, except in such cases as are otherwise provided for in this act,, be guilty of a misdemeanor, and upon conviction,, shall be punished by a fine of not more than double-the amount required for such license.” The eleventh ■subdivision of section 9 of the same act provides: “Owners or manages of each boat used, wholly or in part, for peddling, of less than twenty tons, shall pay for a license ten dollars, and for more, than twenty tons, shall pay for license, thirty dollars. All traveling picture or book agents, shall pay for license tax ten dollars. Hawkers and peddlers shall each pay for license tax three hundred dollars; provided, the words book agents, peddlers and hawkers shall not apply to vendors of religious books only; provided also, that boats and vehicles engaged in the sale of vegetables •and fresh meat, the product of the farm or plantation, and which is butchered upon the farm, and plantation products, fish and oysters, shall not be considered as peddling boats or vehicles. All unlicensed traveling dealers who shall bargain or sell any goods, wares or merchandise, including beers, wines and liquors, for ■cash or otherwise, by sample or in any other manner, for present or future delivery to any other person whatever, by himself or agent or agents following after to deliver and collect for same, except a licensed dealer, shall be deemed a peddler under this act. This act shall include peddlers of clocks, stoves or ranges, .and sewing machine agents, whether selling by sample, or on future delivery, or otherwise; provided, that permanent or locally established agents shall be exempt. from the provisions of this section. All persons or dealers, traveling from place to place, selling goods, wares or merchandise of any and all descriptions, shall pay a license tax of fifty dollars in each county; .and it shall be unlawful for such persons or dealers to sell or attempt to sell under or by virtue of the license of any other licensed dealer, merchant store-keeper or druggist: provided, that permanent or locally established agents shall be exempt from the provisions of this section.”</p> <p>The indictment against the defendant was predicated-upon these provisions.</p>

<p>1. Appeals in chancery are returnable in like time and manner as writs of error at law, and the act of 1897, Chapter 4528?, the-sole purpose of which being to make the record of the entry of an appeal notice to an appellee, and to abolish citations in chancery, does not change the time required to intervene, under former statutes, between the entry of an appeal and the return day thereof.</p> <p>a. Under Section 1270, Revised Statutes, writs of error at law are returnable to the first day of the next succeeding term of the Supreme Court, unless said first day shall be less than thirty days from the date of the writ, when it shall be returnable to a day in such term, more than thirty days and note more than fifty days from the date of the writ; and an appeal entered in clear violation of its provisions may be dismissed.</p> <p>8. The acknowledgment by counsel of service of a copy of the written directions to the clerk to make up the transcript, with consent that he should at once commence the preparation of the same, is no waiver of the right to move to dismiss an appeal on the ground of a void or irregular entry thereof.</p>

Writ of Error to the Circuit Court for Hillsborough county. STATEMENT.

. STATEMENT. The appellant company filed a bill against appellees, Siusband and wife, to foreclose a mortgage executed by them to Charles Swayne to secure the payment of a mote of $1,500, executed by one C. C. Sutton to Charles ■Swayne, and alleged to have been transferred and assigned to complainant. The note and mortgage are made exhibits to the bill and as parts thereof.

<p>Writ of error dismissed by the court, there being no record evidence of a final judgment entered, but only a recital by the clerk as follows: “Whereupon judgment upon the said verdict was entered by the court, during said term of court, and did sentence the defendant to be hanged by the neck until he was dead, as appears of record.” Also the certificate of the clerk to the supposed transcript of record reciting that certain numbered pages constituted a true copy of all proceedings and a correct transcript of the record of a judgment, not in the case of the State of Florida against Thomas Milton, but in the case of the State of Florida against another party, to-wit: James Bartlett, as appeared upon the files and records in the clerk’s office.</p>

Writ of Error to the Circuit Court for Holmes county. STATEMENT. Plaintiff in error instituted an action of ejectment against defendants in error to recover possession of the F. W. i of F. W. ¿ of sec.j.28; the F. E. i of F. W. and F. £ of F. E. 4 of sec. 29, all in township 7, range 14, F. and W., situated in Holmes county, and the decision was in favor of defendants.

<p>Appeal from the Circuit Court for Marion county.</p> <p>The facts in the case are stab <1 in the opinion.</p>

Writ of Error to the Circuit Court for Nassau county. STATEMENT.

<p>Appeal from the Circuit Court for Washington, county.</p> <p>STATEMENT.</p> <p>The appellee, John H. White, on May 31st, 1894,.. filed his bill' in equity in the Circuit Court of Washington county against the appellants, A. D. Campbell,, as trustee, and Cephas L. Wilson, as commissioner,,, appointed by said court, in which he alleges as follows: “That he is the owner in fee simple, and is inn the actual possession, of the following described lands lying and being in Washington county, to-wit: The ■southwest quarter of the northwest quarter of section •one, township three north, range fourteen west, containing forty acres, more or less. That the said Cephas Wilson, as said commissioner, has levied upon said land by virtue of a final decree obtained in a cause pending in this court, wherein the said A. D. Campbell, as said trustee, was complainant, and H. 1). Brock and Company. IT. I). Brock and wife, Ilenry Faust and wife, T. W. King and J. M. Stuckey were defendants; and has advertised said land for sale under said decree on Monday, the 4th day of June, A. D. 1894, and will sell the same on said day unless restrained by your honor. That if said sale is made as advertised, it will cast a cloud upon your orator’s title to the same, and will subject him to great inconvenience, annoyance and expense to have said cloud removed from his title to said land.” The bill prayed for temporary and perpetual injunction to restrain the ^sale of said land under said decree, and for general relief.</p> <p>The defendants, at the hearing of the application for temporary injunction, filed their answer to the bill as follows: “First, That they insist that the complainant in and by his bill of complaint has not made ■or stated such a case as does or ought to entitle him to the relief or any other relief. Second. That the complainant was made a party defendant to the suit in which the decree was obtained under which defendants are acting, and the complainant was by the afore•said decree expressly barred and foreclosed of all right .and equity of redemption, right of dower and separate ■estate in and to the identical property described in the bill of complaint herein. And the defendants further,, on information and belief, deny that complainant has. the fee simple title to, and actual possession of, the-lands described in the bill of complaint herein. And defendants further deny that the said complainant has any title to said lands or any possession thereof which is superior to the rights of defendants to sell said lands, under said decree.”</p> <p>At the hearing of the application for temporary injunction, defendants also exhibited in support of their answer certified copies from the Clerk of the Circuit Court of Washington county of the decree pro confesso and final decree in a cause pending on the equity side of said court in favor of A. D. Campbell, as trustee for divers parties, against Howell D. Brock and others, for foreclosure of mortgage, to which bill the-complainant herein, John H. White, was .a party defendant, and by which final decree of foreclosure the-said White was expressly adjudged to be barred and. foreclosed of all right and equity of redemption im and to the identical land the sale of which under said, foreclosure decree he seeks to enjoin by his bill herein. This decree of foreclosure was rendered on April 25th, 1894. The complainant at the hearing for temporary-injunction appears by the record before us to have-made no other or further showing to the court than that contained in his verified bill of complaint.</p> <p>Upon the hearing for injunction the judge made the-f olio wing order: ‘‘This cause came on for hearing-upon application of complainant for the temporary injunction prayed for; after argument of counsel for the respective parties, on consideration thereof, it was-ordered, adjudged and decreed by the court that the-defendants, and each of them, their agents and attor"sneys, be restrained and enjoined, until the further ■order of this court, from selling the following described land in Washington county, Florida, to-wit: The southwest quarter of the northwest quarter of ■section one, township three, north, range, fourteen ■west, containing forty acres, more or less, or from selling any portion or interest therein; provided this injunction shall not become effectual unless the complainant shall on or before twelve o’clock noon, Monday June 4th, 1894, execute and file with the clerk of this court a bond in the sum of one hundred dollars, with good sureties to be approved by the clerk of this court, conditioned to pay to the defendants all ■costs and damages which said defendants may sustain in consequence of this injunction being improperly ■ issued. It wms further ordered that if defendants appeal from this decree, that such appeal operate as a ■ supersedeas upon the defendants executing and filing with the clerk of this court, to be approved by him, a bond payable to the complainant in the sum of two hundred dollars, conditioned to pay plaintiff all costs and damages which he may sustain in consequence of such supersedeas being operative, if this decree be • confirmed by the Supreme Court of the State of Florida. This injunction was granted upon condition that complainant do. within ten days from this date amend his bill of complainant so as to show that the title now claimed by complainant was acquired by him after the date of the decree of foreclosure in the case of A. I). Campbell, trustee, vs. H. I). Brock et al., in evidence in this case, and leave to amend the bill in that respect is hereby granted. Ordered and decreed at chambers, in Marianna, Jackson county, Florida, June 2d, 1894. W. I). Barnes, Judge 1st Jud. Cir. of Fla.”</p> <p>The complainaut -filed the one hundred dollar bond required of him, and on June 4th, 1894, the defendants took their appeal from said order to this court.</p> <p>Mr. Justice Carter being disqualified, took no part in the adjudication of this case.</p>

<p>APPEAL WILL BE DISMISSED WHEN NOTHING CAN RESULT THEREFROM.</p> <p>An appellate court will not entertain an appeal where it is plain that nothing can be accomplished by its decision, whether it befos» or against the appellant.</p>

Writ of Error to the Circuit Court for Gadsden, county. The facts in the case are stated in the opinion. (Judge Broome, of the Seventh Judicial Circuit, sat in the place of Mr. Justice Carter, who was disqualified).

. STATEMENT. The appellant, Annie Estes, as complainant in the-court below, on the 19th day of April, 1893, filed her bill in equity in the Circuit Court of Jackson county for the partition of lands against the. appellees, in which it is alleged that Thomas M. White, Jr., late a, citizen of Jackson county, Florida, died intestate ort- or about the 20th day of March, A. D. 1893, owning and possessing in fee simple at the time of his death-divers tracts and lots of land…

<p>SECTION 1500 REVISED STATUTES UNCONSTITUTIONAL WHEREIN IT PERMITS EJECTMENT BILLS IN EQUITY — APPELLATE COURTS WILL ORDER DISMISSAL OP BILL WHERE EQUITY HAS NO JURISDICTION, EVEN THOUGH THE JURISDICTIONAL QUESTION IS NOT RAISED.</p> <p>1. Section 1 of Chapter 3881, laws of 1889, brought forward as section 1500 of the Revised Statutes, should be enforced so far only as it can be consistently with the limitations of our Constitution, but it is unconstitutional and without force or effect in so far as it undertakes or has the effect of converting the remedy at law by ejectqient into an action cognizable in equity. Where the remedy at law by ejectment is clear and adequate, then this statute can not, constitutionally, put such a case into equity, and thereby deprive the defendant of his common law right of a trial thereof by jury.</p> <p>2. Where it is apparent to an appellate court that a bill in equity carried to it on appeal makes no case of which a court of equity has jurisdiction, it is proper for it to order a dismissal of the bill for want of equity, even though its equity be not questioned by the pleadings or expressly presented.</p>

<p>Writ of Error to Circuit Court Duval county.</p>

<p>■ Writ of Error to Circuit Court Osceola county.</p>

<p>Appeal from Circuit Court Putnam county.</p>

<p>Writ of Error to Circuit Court Suwannee county.</p>

<p>Avppeal from Circuit Court Marion county.</p>

<p>Appeal from Circuit Court Marion County.</p>

<p>Writ of Error to Circuit Court Duval county.</p>

<p>Appeal from Circuit Court Duval county.</p> <p>A W OoeTcrell & Son, for Appellants.</p>

<p>Writ of Error to Circuit Court Duval county.</p>

<p>Appeal from Circuit Court Volusia county.</p>